1650 Forest Ave. Corp. v Farrell Fritz, P.C.

[*1] 1650 Forest Ave. Corp. v Farrell Fritz, P.C. 2007 NY Slip Op 51999(U) [17 Misc 3d 132(A)] Decided on September 28, 2007 Appellate Term, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on September 28, 2007
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., GOLIA and RIOS, JJ
2006-1262 RI C.

1650 Forest Avenue Corp., Appellant,

against

Farrell Fritz, P.C., Respondent.

Appeal from an order of the Civil Court of the City of New York, Richmond County (Philip S. Straniere, J.), entered September 9, 2005. The order, insofar as appealed from, granted defendant's motion to dismiss the action.

Order, insofar as appealed from, reversed without costs, motion by defendant to dismiss the action denied, and matter remanded to the court below for all further proceedings.

Plaintiff commenced this commercial claims action against defendant, a law firm, seeking damages in the amount of $5,000. Defendant moved to dismiss, asserting that the action was actually one in legal malpractice and was barred by the three-year
statute of limitations contained in CPLR 214 (6). The court granted the motion and plaintiff appeals.

The purpose of CPLR 214 (6) as amended, effective September 4, 1996, is to provide a three-year statute of limitations in non-medical malpractice actions, regardless of whether the action is based on a theory of tort or breach of contract (see Shumsky v Eisenstein, 96 NY2d 164 [2001]). Prior to the amendment, malpractice actions based on a breach of contract theory were accorded a six-year limitation period applicable to contract actions (see Santulli v Englert, Reilly, & McHugh, 78 NY2d 700 [1992]). Regardless of which theory the action is based on, contract or tort, CPLR 214 (6) applies only to actions seeking damages for malpractice, which is the negligence of a professional toward the person for whom he or she renders a service and springs from the correlative rights and duties assumed by the parties through the relationship (Cubito v [*2]Kreisberg, 69 AD2d 738 [1979], affd 51 NY2d 900 [1980]).

Unquestionably, plaintiff has made allegations concerning defendant in the case at bar which, if established, would constitute malpractice. However, it does not appear from the record that plaintiff is seeking to recover damages resulting from any alleged malpractice. Rather, plaintiff asserts that a retainer agreement was signed and a sum of money paid to defendant as part of the agreement, and that at the time that the attorney-client relationship was terminated, the fees earned by defendant for services rendered to plaintiff were less than the retainer. Accordingly, plaintiff's action seeks to recover a refund of the alleged overpayment. Defendant claimed that at the time the relationship terminated, there was a balance due and owing to defendant. This is simply an action involving a fee dispute over the amount defendant had earned for its services and in no way involves any claim for damages stemming from negligently performed services. Thus, the action should not have been dismissed and substantial justice was not done between the parties in accordance with the rules and principles of substantive law (CCA 1807-A [a]).

We note that plaintiff also brought two commercial claims actions against employees of defendant. These actions were also dismissed and plaintiff appealed. However, he never perfected the appeals and the appeals were dismissed. Although both parties have addressed these other cases in their briefs, said matters are not before this court.

Pesce, P.J., Golia and Rios, JJ., concur.
Decision Date: September 28, 2007